Decision Date: 11/03/95 Archive Date:
11/02/95
DOCKET NO. 93-27 400 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco,
Texas
THE ISSUE
Entitlement to service connection for a cervical spine
disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
L. A. Samorajczyk, Associate Counsel
INTRODUCTION
The veteran served on active duty from December 1945 to
October 1947 and January 1951 to September 1953.
Although the veteran's claim was denied by an August 1972
unappealed regional office (RO) rating decision, there is no
evidence that the veteran received proper notice of the
adverse decision. See 38 C.F.R. § 20.1103 (1995).
Accordingly, the Board of Veterans' Appeals (Board) has
reviewed the claim on the basis of the entire record and the
certified issue has been rephrased, as noted on the title
page.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that service connection is warranted
for his cervical spine disability. He maintains that his
cervical spine was injured when he was thrown out of a
moving vehicle in service. He states that he has
experienced neck problems since the accident.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims
file. Based on its review of the relevant evidence in this
matter, and for the following reasons and bases, it is the
decision of the Board that the veteran has not met the
initial burden of submitting a well-grounded claim for
entitlement to service connection for a cervical spine
disability.
FINDING OF FACT
No competent evidence of a nexus between an in-service
injury and any current cervical spine disability has been
presented.
CONCLUSION OF LAW
The claim of entitlement to service connection for a
cervical spine disability is not well grounded. 38 U.S.C.A.
§ 5107 (West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Service connection may be granted for disability resulting
from disease or injury incurred or aggravated during active
service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). Service
connection may be granted for any disease diagnosed after
discharge, when all the evidence, including that pertinent
to service, establishes that the disease was incurred in
service. 38 C.F.R. § 3.303(d) (1995).
The threshold question that must be resolved with regard to
each claim is whether the appellant has presented evidence
that the claim is well grounded; that is, that the claim is
plausible. If he has not, his appeal fails as to that
claim, and the Department of Veterans Affairs (VA) is under
no duty to assist him in any further development of that
claim. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v.
Derwinski, 1 Vet.App. 78 (1990).
Case law provides that, although a claim need not be
conclusive to be well grounded, it must be accompanied by
evidence. A claimant must submit supporting evidence that
justifies a belief by a fair and impartial individual that
the claim is plausible. Dixon v. Derwinski, 3 Vet.App. 261,
262 (1992); Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992).
In order for a claim to be well grounded, there must be
competent evidence of current disability (a medical
diagnosis); of incurrence or aggravation of a disease or
injury in service (lay or medical evidence); and of a nexus
between the in-service injury or disease and the current
disability (medical evidence). Caluza v. Brown, 7 Vet.App.
498 (1995).
Where the determinant issue involves a question of medical
diagnosis or medical causation, competent medical evidence
to the effect that the claim is plausible or possible is
required to establish a well-grounded claim. Grottveit v.
Brown, 5 Vet.App. 91, 93 (1993). Lay assertions of medical
causation cannot constitute evidence to render a claim well
grounded under 38 U.S.C.A. § 5107(a) (West 1991); if no
cognizable evidence is submitted to support a claim, the
claim cannot be well grounded. Id.
Service medical records reveal that the veteran's nasal
bones were fractured after he fell out of a cab in November
1952. There was no artery or nerve involvement. There are
no complaints, medical findings, or treated of a cervical
spine injury or disability noted in the service medical
records. The spine was clinically evaluated as normal at
discharge examination in September 1953.
The veteran was examined for VA compensation purposes in
July 1972. He related complaints of chronic neck pain to
the injury in service when he fell out of a taxi and hit his
head on a rock. There was full range of motion of the neck.
X-rays showed rigidity of the lower cervical spine.
Probable muscle tension pain and possible mild
osteoarthritis of the cervical spine were diagnosed.
The veteran was hospitalized in April 1992. Studies showed
some cervical spine degeneration at C-5 to C-7. In May
1992, a laminectomy of C-3 to C-6, with fusion, was
performed. In October 1992, status post decompression
laminectomy with persistent upper extremity swelling and
pain was assessed.
Following a review of the record, the Board notes that no
competent evidence of a nexus between an inservice neck
injury and any current cervical spine disability has been
submitted. The service medical records are negative for any
complaint, treatment or clinical finding pertaining to an
injury to, or disorder of, the neck. The veteran's
testimony that he incurred an injury to the neck in service
in 1952, however, is competent evidence of an inservice
injury, for the purpose of determining whether his claim is
well grounded. The spine was clinically evaluated as normal
at discharge examination in September 1953. When the
veteran first filed a claim for VA compensation benefits in
July 1957, he did not include a claim for a cervical spine
disability. The first evidence of cervical spine pathology
was upon VA examination in 1972, when probable muscle
tension pain and possible mild osteoarthritis of the
cervical spine were diagnosed. However, the examiner did
not provide an opinion regarding the etiology of this
"possible" disorder. Likewise, an etiology was not provided
for cervical spine degeneration at C-5 to C-7 found in April
1992, which eventually led to a laminectomy of C-3 to C-6.
The veteran's post-service statements that his current
cervical spine disability is related to an injury in service
are not competent evidence of a relationship between any
current cervical spine disability and an injury in service.
See Grottveit v. Brown, 5 Vet.App. 91, 93 (1993); Espiritu
v. Derwinski, 2 Vet.App. 492 (1992). Because there is no
competent evidence of a nexus between an inservice injury
and the veteran's current cervical spine disability, the
claim is not well grounded.
ORDER
The claim of entitlement to service connection for a
cervical spine disability is dismissed.
JOHN E. ORMOND, JR.
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740,
___ (1994), permits a proceeding instituted before the Board
to be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on
appeal is appealable to the United States Court of Veterans
Appeals within 120 days from the date of mailing of notice
of the decision, provided that a Notice of Disagreement
concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402 (1988). The date which appears on the
face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.
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